Attorney (and prolific author) Michael Cicchini has been doing some interesting work on Wisconsin’s reasonable doubt instruction, including some empirical research with psychologist Lawrence White. Cicchini has now created a helpful resource page for criminal defense lawyers, which includes not only links to his own research, but also a sample brief and a list of judges who have already adopted modifications to the standard instruction.
Cicchini summarizes the problems with the standard instruction this way:
After explaining the concept of “beyond a reasonable doubt,” this instruction tells the jury “not to search for doubt,” but instead “to search for the truth.”
J.I. 140 is blatantly unconstitutional. First, telling the jury “not to search for doubt” is unconstitutional because, as other states have held, it is the jury’s duty to evaluate the state’s case for reasonable doubt. Second, telling the jury “to search for the truth” is unconstitutional because, as other states have held, it communicates the much lower “preponderance of evidence” standard, i.e., if the charge is merely probably true, the jury should convict.